How to opt-out staff from the 48 hour week

It's crucial that you comply with the requirements on maximum working time regulations. Failing to do so can result in an expensive employment tribunal so make sure that you understand your obligations.

Create your Working time opt-out letter

Check your employment documents

Review any arrangements set out in your employment policies and contracts. This note summarises the minimum standards but you should apply your own arrangements if they are more generous to employees.

Decide whether you need an opt-out agreement

The basic rule is workers must not work more than 48 hours a week. This includes employees and others providing personal service, but not the genuinely self-employed. Some freelancers or contractors qualify for this protection. If you are unsure about this, Ask a lawyer.Compliance with the 48 hour limit is averaged over 17 weeks. So occasional long hours should not be an issue.Working hours includes on-call time on your premises and work done at home at your request. Time on work-training courses, working lunches and time on the phone while on call away from work premises also count towards the limit.The 48 hour limit does not apply to workers who can decide independently on their working patterns although, in practice, it is unclear exactly when this exception applies. Special rules also apply to some specific jobs like transport workers, the armed forces and off-shore workers. The 48 hour limit does not apply to workers under 18 years old. Those under 18 cannot work more than 8 hours a day or 40 hours per week.Time spent in other jobs also counts towards the 48 hour limit, so make sure you’re aware if your staff do outside work for others or themselves.The 48 hour limit on weekly working time will not apply if you obtain the worker's agreement in writing to work in excess of the limit. This is called an opt-out agreement.

The opt-out agreement

If your staff work over or near to the 48 hour limit then try to obtain an opt-out agreement.

The opt-out agreement should be in writing.

The worker can withdraw their opt-out consent by giving you notice, regardless of whether employment has started or not. A week's notice of withdrawal is required unless you agree a different notice period, but it can’t be more than three months. Write the notice period in the agreement.

The opt-out agreement should specifically say that the worker is agreeing to disapply the statutory 48 hour limit on weekly working time. If their hours of work are changing, write down the new hours in the agreement.

Give employees a free choice whether to opt-out

An opt-out agreement will only be valid if the employee freely consents to it, and any attempt to apply pressure to have it signed in unlawful. So it’s better to have a separate opt-out agreement. Don’t include it in the offer letter or employment contract.

It is illegal to dismiss or disadvantage an existing employee for refusing to opt-out, so don’t pressure employees into signing. However you can legally refuse to hire someone new who declines to opt-out.

You can decline to accept a worker’s request to opt-out provided you are fair and consistent in your approach (eg if you are legitimately concerned about the effect on their health).

Comply with other legal duties about working time

Opted-out workers are still protected by limits on daily and weekly working hours and rest breaks, so you must comply with these.

Allowing staff to work excessively long hours might cause other legal problems like breach of health and safety rules or the duty not to injure staff. The opt-out does not remove these duties.

You must keep a written record covering the last two years showing which workers have opted out. You should also keep a record of the working time of staff that have not opted out.